68 This subsection (and partially the next one) is substantially based on a personal communication by Catherine Monagle (November 2001).
The right to self-determination essentially recognizes the right of peoples to define their own way of life, in all its many facets. This right, though applying to ‘all peoples’ in international law,69 is seen by indigenous scholars, leaders and communities as particularly important for the advancement of the interests of indigenous peoples.70 It is implicitly cognizant of the history of indigenous peoples (as, generally speaking, previously autonomous peoples who, while being forcibly subject to colonization, have maintained a distinct identity), while providing a conceptual framework for the achievement of their aspirations.
69 See Article 1 of the International Covenant on Civil and Political Rights.
70 See ILO Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries, adopted 27 June 1989. While the Draft Declaration on the Rights of Indigenous Peoples explicitly denotes the right to self-determination as applying to indigenous peoples (no other instruments do, and the right has never been specifically interpreted as applying to indigenous peoples in any interpretive body), the declaration remains in draft form. See also, Anaya, 1996.
The protection of traditional knowledge, including TRM could be used, according to some, to provide indigenous communities with a measure of control over their relations with the rest of the community. Such control may be an element of self-determination71 and collective cultural sovereignty (The Crucible Group, 2001). Particularly, the application of IPRs to TRM enables indigenous peoples to choose to participate in a system that they have been previously excluded from, thus giving them the choice to gain IPRs and engage in commercialization if they so desire.
71 The Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples and the Draft Declaration on the Rights of Indigenous Peoples both allude to the legal recognition of indigenous communities’ intellectual property rights as elements of indigenous peoples’ self-determination.
The IPRs protection of TRM will, arguably, be consistent with the spirit of the right to self-determination, and various specific rights in international law (both binding and non-binding),72 only if indigenous peoples desire, or at least do not object to, the availability of such protection.73 Protection that is incompatible with the values of indigenous peoples, or inappropriate for other reasons as determined by them, is unlikely to meet such criteria.
72 See, ILO Convention 169, ILO Convention 107, adopted 1957, the Draft Declaration on the Rights of Indigenous Peoples, the International Covenant on Civil and Political Rights, the UN Charter, The Declaration on the Right to Development and the International Covenant on Economic, Social and Cultural Rights.
73 See, for example, Article 7, ILO Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries, and Articles 3, 4, 12, 19, 29, 30 available at [http://www.ilo.org/public/english/employment/strat/poldev/papers/1998/169guide/169guide.htm#C1]. and Article 31 of the Draft Declaration on the Rights of Indigenous Peoples.
Given the likelihood of diverging opinions among indigenous peoples regarding the IPRs protection of TRM,74 the establishment of rules at the international level including a single sui generis form of protection may, at least for some indigenous peoples, be inconsistent with the right to self-determination. Laws at a national level may or may not be consistent with self-determination depending upon the opinions of the indigenous peoples within that particular jurisdiction and the process by which the decision to give IPR protection to traditional knowledge was reached.75
74 See various perspectives submitted to the United Nations Conference for Trade and Development (UNCTAD) seminar on ‘Systems and National Experiences for Protecting Knowledge, Innovation and Practices’, Geneva, 30 October-1 November (2000).
75 See Article 7, ILO Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries (1989).
The existence of laws that fail to prevent the misappropriation of TRM fail to support the achievement of self-determination and specific rights in ILO Convention 169 and the Draft Declaration on the Rights of Indigenous Peoples, as misappropriation can reduce the ability of indigenous peoples to exercise control over resources and culture by limiting their ability to define and carry out their own development priorities,76 and by removing the opportunity to choose to either utilize IPRs and commercialize knowledge, or to ensure that knowledge does not become subject to IPRs.
76 See Articles 7 and 23, ILO Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries (1989), Articles 4,12,21,29,20 of the Draft Declaration on the Rights of Indigenous Peoples.